Canada: Increasing Damage Awards In Human Rights Cases

Those of you who attended our recent symposium in Toronto may
have heard
Cliff Hart speak on this issue.

Generally, human rights tribunals have the authority to award
damages for: (i) past and future wage losses; (ii) loss of benefits
and other employee entitlements; and (iii) injury to dignity,
feelings and self-respect. In the past, damages in human rights
cases for injury to dignity, feelings and self-respect were
generally modest, with damage awards being limited to an unofficial
maximum of around $20,000 in the most severe cases. However, across
Canada, damages awarded by human rights tribunals for injury to
dignity, feelings and self-respect have been escalating. Employers
should be aware that the consequences of failing to provide a
discrimination free workplace can be significant.

In the leading decision on injury to dignity, feelings and
self-respect, Arunachalam v. Best Buy Canada Ltd., the
Human Rights Tribunal of Ontario explained the purpose of general
damage awards for loss of dignity:

Monetary compensation for injury to
dignity, feelings and self-respect recognizes that the injury to a
person who experiences discrimination is more than just
quantifiable financial losses, such as lost wages. The harm, for
example, of being discriminatorily denied a service, an employment
opportunity, or housing is not just the lost service, job or home
but the harm of being treated with less dignity, as less worthy of
concern and respect because of personal characteristics, and the
consequent psychological effects.

Human rights jurisprudence primarily applies two criteria in
determining the appropriate damages for injury to dignity, feelings
and self-respect: (i) the objective seriousness of the conduct; and
(ii) the effect on the particular applicant who experienced the
discrimination. The first criterion recognizes that injury to
dignity, feelings, and self-respect is generally more serious
depending, objectively, upon what occurred. The more prolonged,
hurtful, and serious harassing comments are, the greater the injury
to dignity, feelings and self-respect. The second criterion
recognizes the applicant's particular experience in response to
the discrimination. Damages will be generally at the high end of
the relevant range when the applicant has experienced particular
emotional difficulties as a result of the event, and when his or
her particular circumstances make the effects particularly
serious.

And so to the cases.

The British Columbia Human Rights Tribunal issued an award of
$75,000 for injury to dignity in Kelly v University of British
Columbia, 2013 BCHRT 302. Prior to this decision, the highest
amount awarded for general damages by a BCHR Tribunal was $35,000.
In 2015, the B.C. Supreme Court largely upheld the Tribunal's
findings, but did set aside the $75,000 award for injury to dignity
on the basis that there was no compelling evidence or rationale
that would justify the Tribunal more than doubling the highest
award. On appeal, the B.C. Court of Appeal held that the chambers
judge had erred by setting aside the $75,000 award. The Court of
Appeal recognized that in the case of injury to dignity awards,
there is no cap and human rights tribunals should not be prevented
from adequately compensating a complainant for the
complainant's actual injury to dignity.

In Ontario, the Human Rights Tribunal of Ontario awarded damages
of $150,000 and $50,000 to two employees against their former
employer in O.P.T. v Presteve Foods Ltd., 2015 HRTO 675.
The HRTO awarded damages as a result of the sexual harassment and
sexual assault the employees suffered at the hands of the employer.
Prior to this decision, HRTO Tribunals had typically awarded
damages in the range of $500 to $15,000 and the HRTO had previously
indicated that while there was no maximum damage award for injury
to dignity, feelings and self-respect, there was an unofficial
upper limit for general damages, between $25,000 and $40,000,
typically awarded for especially egregious misconduct.

In Alberta, human rights damages have been low compared to the
other provinces. However, in Alberta general damages for loss of
dignity have also been escalating. Recently, the Alberta Human
Rights Commission issued a decision in Pelchat v Ramada Inn and
Suites (Cold Lake), 2016 AHRC 11, and ordered the respondent
to pay the complainant general damages for loss of dignity in the
amount of $25,000. In its decision, the AHRC Tribunal noted that in
Alberta there is no statutory limit on the amount of damages
available for mental distress, injury and loss of dignity flowing
from discriminatory conduct. The Tribunal also noted that damages
must not be so low as to trivialize the importance of the human
rights legislation by effectively creating a license fee to
discriminate.

While there were extreme facts in the above noted cases, these
decisions make it clear human rights tribunals throughout Canada
are seriously considering the effect that discrimination by
employers has on employees and the human rights tribunals are
prepared to order large awards against employers where
circumstances warrant. Employers must take note of these rising
awards. More than ever, it is imperative for employers to ensure
that all workers are properly trained on harassment and workplace
violence policies and also ensure that they provide a
discrimination free workplace. As highlighted in the above cases,
the consequences of failing to provide a discrimination free
workplace can be significant.

On June 22, 2017, Bill C-44, the Budget Implementation Act, 2017, No.1 received Royal Assent. The Act makes a number of changes to the Canada Labour Code (the "Code") that will impact federally regulated employers, both unionized and non-unionized.

On May 30, 2017, the Ontario government announced its intention to introduce new workplace legislation, The Fair Workplaces, Better Jobs Act, 2017, which would significantly amend Ontario's existing Employment Standards Act...

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